Summary
In Owens Corning, the claimant worked on an assembly line, folding fiberglass batts as they passed by on a conveyor belt.
Summary of this case from State ex Rel. v. Indus. CommOpinion
No. 79-1444
Decided May 7, 1980.
Workers' compensation — Additional award for violation of specific safety requirement — Contrary to law, when — Ohio Adm. Code 4121:1-5-05(D)(1), construed.
APPEAL from the Court of Appeals for Franklin County.
Appellant, Homer P. Sharp, was employed by appellee, Owens-Corning Fiberglas Corporation, on July 15, 1975, when he injured his foot within the scope of and in the course of his employment. At the time of the injury, appellant was folding batts of fiberglass wool as they proceeded along a conveyor belt in front of him. A second employee removed the folded batts from the conveyor belt and stacked them. A third employee placed the stacked batts in a packing machine. While the third employee was compressing the stacked batts within the machine, a fourth employee attached a bag at the front of the packing machine and pressed the start button causing the machine to ram the pressed batts into the bag. As the packing machine is filling the bag, it drags a guide bar forward along a track constructed in the rear part of the machine to a point for the automatic release of the ram bar. During one of these bag filling operations, appellant, while folding the batts on the separate conveyor belt, lifted his foot onto the nearby packing machine. His foot caught on the guide bar which had been out of line seven or eight inches causing his injury. Appellant's claim for workers' compensation was allowed. He then filed an application for an additional award for violation of specific safety requirements. The Industrial Commission allowed the additional award finding that appellee violated specific safety requirement IC-5-03.07(A).
Appellee then instituted this action in mandamus in the Court of Appeals for Franklin County alleging that the commission's order constituted an abuse of discretion. The court issued the writ directing the commission to vacate its order granting the additional award. Appellant's motion for reconsideration alleged that his counsel did not appear at oral argument because he did not receive notice of the hearing. The court denied the motion holding that even if notice had not been sent or received appellant's brief ably set forth his position and no prejudice resulted.
The cause is now before this court upon appeal as a matter of right.
Messrs. Reese, Paugh, McNenny, Price and Mr. James H. McNenny, for appellee.
Barkan, Barkan Neff Co., L.P.A., and Mr. Irving Barkan, for appellant.
Specific Safety Requirement IC-5-03.07(A), now Ohio Adm. Code Rule 4121:1-5-05(D)(1), provides, in pertinent part, "Means shall be provided at each machine, within easy reach of the operator, for disengaging it from its power supply." (Emphasis added.) Appellant argues that "operator" includes all employees who work at a machine and whose activity is necessary for its operation. Appellant contends further that since there was some evidence before the commission that he was necessary for the operation of the packing machine, the commission's order was not an abuse of discretion.
We believe, however, that appellant's definition of "operator" is too inclusive. At the time of his injury, appellant was folding batts of fiberglass wool on a separate conveyor belt. His task was completed before the batts traveled to the packing machine. Thus, we hold that one merely folding batts on a conveyor belt carrying them to a separate packing machine cannot be an "operator" of the packing machine for purposes of Rule 4121:1-5-05(D)(1). Therefore, we agree with the Court of Appeals that the order of the commission granting an additional award to appellant was contrary to law.
Appellant contends that the decision of the Court of Appeals should be vacated and the cause remanded for new oral argument. While it is regrettable that appellant's counsel was not notified of the hearing, we agree with the Court of Appeals in its denial of appellant's application for reconsideration, that appellant suffered no prejudice.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.